Capital Punishment Moratoriums and the Politics of Death

The Supreme Court's last minute stay of Mississippi execution yesterday marks the beginning of a moratorium on capital punishment in the U.S. that will last at least until the Court decides a case on lethal injection that it accepted this fall and will hear argument on in January. (Read Linda Greenhouse's reporting). The Court is being asked to decide how lower courts should proceed in considering whether the current method of lethal injection violates the Constitution's ban on "cruel and unusual punishment."

The stay, which could last until summer (the Supreme Court usually resolves all pending matters prior to ending its term in June) or longer, is unlikely to result in a permanent obstacle to executions. Unlike the Supreme Court's moratorium in the early 1970s, the Court is not considering fundamental challenges to whether the death penalty is constitutional. Even if the current method of lethal injection is found wanting, it is likely that some altered method will ultimately prove acceptable.

Still, moratoriums are interesting things. Two quick predictions about the impact of this one. First the utopian hope. The American death penalty is a bizarre creature. In most states where it exists, it is an expensive and incredibly lengthy legal process that only rarely result in an execution. No one, not even its supporters, really believe that capital punishment is indispensalbe thinks (unlike prisons which as Frank Zimring points out in his book The Contradictions of American Capital Punishment, few can imagine dispensing with altogether). The rate of Americans sentenced to death has declined in recent years as have actual executions (reasons are unclear). In such a situation, it is always possible that once it stops, this complicated and unnecessary machinery will never start again (Keine Chara! as my Bubbie would have said).

The second scenario is more likely. As I explore in Chapter 2 of Governing through Crime, the death penalty has been a boon to state politicians, especially governors who have been able to turn judicial obstacles to executions into opportunities to demonstrate their own loyalty to the public's darkest fears of crime. In short, look for governors in the affected states to blame the courts for favoring the interests of murderers over victims. The posture of this case which focuses on the suffering of inmates undergoing execution is particularly felicitous for this kind of politics. Courts, with their deliberation and formality inevitably seem out of line with the emotional logics unleashed by violent crime and its consequences.